A tinge of green in our Bill of Rights?

Amidst the root and branch opposition to socio-economic rights from some quarters, the idea that the Bill of Rights might contain an environmental right seems to have got lost in the smoke of this rather unedifying battle. The July 2012 Consultation on a Bill of Rights summarises the rival contentions well – see below.

I am ducking well away from the underlying question – should there be a Bill of Rights at all? – but support the proposition that, if there is to be such a Bill, it should contain some provision about the environment. Answers on a postcard to the Commission by 30 September, please, whether you agree or disagree with me, but in the interim, here is my penn’orth.

The Consultation Paper put it this way.

Proponents argue that any UK Bill of Rights ought to contain environmental rights. They argue that the increasing awareness of the risks associated with an unsustainable environment, and the importance of environmental protection, support the inclusion of such rights. They point to the many links between the protection of human rights and the protection of the environment in international treaties and to the fact that a number of countries, including South Africa, have afforded constitutional protection to environmental rights.

Others, however, consider the range of existing statutory measures in respect of environmental protection to be sufficient. They question, as with socio-economic rights more generally, how such rights would be enforced given that issues of environmental protection involve policy and resource questions about the allocation of resources and political judgements that many consider should be for elected legislators and not for courts to decide.

Now, for me.

It would be ludicrous for a twenty-first century rights instrument not to say something about environmental rights/values, if the purpose of the Bill of Rights is to summarise shortly British values. If nothing is said, some bright spark will argue in due course that environmental values are to be subordinated to other values which have made it into the canon. Looking positively, an environmental right should say two things.

The first is to reinforce the ECHR environmental protections provided by Articles 2 (right to life) and 8 (right to home life) aimed at the individual and which have been recognised over the last 20 years or so in Strasbourg cases – bad pollution can affect your health and your family life.

The second is some recognition that the environment involves wider values than any “me, me, me, now” right recognises. This is not to be found in the Strasbourg cases. It may be unrealistic to expect our legislature (of whichever political hue) to give trees rights, but a right for the benefit of present and future generations to have measures to promote conservation, for instance, would amount to a modest proposal in the right direction. Indeed, why not simply adopt Article 24 of the South African Constitution, helpfully set out in the Consultation Paper:

Everyone has the right

(a) to an environment that is not harmful to their health or well-being; and

(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that

(i) prevent pollution and ecological degradation

(ii) promote conservation; and

(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

This is not arrogating to the courts some sharp-edged way of striking down swathes of legislative or executive action. Rather it should be a quiet but persistent reminder to Parliament and Whitehall that selfishness and proprietary ownership should not be the be-all and end-all of government policy, and that other values must be reflected in the decision-making processes within the sorts of government we ought to have. At very least, UK humans alive today ought to think about the environmental position which might confront their descendants – and I would hope that most of us would broaden that consideration to other species and the earth generally. Only the most full-blooded libertarian could possibly find offence with that, surely? So why not say it out loud?

The UK has a legal obligation under International and EU law to enable rights protection to the environment. Its a issue of great debate whether our existing instruments are sufficient, I disagree, it is more like trying to fit a square peg into around hole. However, if we were to establish a Bil of Rights, it would be near criminal not to explicitly refer to environmental rights. Rights are not the same as regulations, they can be assumed or intended, either way, the past 20 years has shown the necessity to control mans development over natural resources, to ignore this, would be of huge detriment to the environment and to democracy.

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